Legal Status | Hindu Marriage Act | The Laws | Case Scenarios| Maintenance Right | Children’s Right | Class I Heir | Class II Heir | FAQ

Often, the mention of the word ‘2nd wife’ tends to raise several eyebrows. Before getting down to the very details of the topic, it is important to know that the property rights of the 2nd wife rest largely on the legality of the marriage.

Now that we have established the key points with regards to 2nd wife and property rights, let us give you the finer details of the topic.

When you want to talk about the property rights of the 2nd wife, the very first thing to examine is the legal status of the marriage. The property rights that the second wife hold have to be meticulously assessed only after one goes through the status of the marriage.

legal will for 2nd wife
Source: Geralt / Pixabay

The Hindu Marriage Act, 1955

As per the Hindu Marriage Act, 1955, the second marriage will only get legal status if, during the time of the marriage, none of the parties should have a living spouse.

While this is the main clause, several other sub-aspects too are a part of the Hindu Marriage Act. You should know the different details to be sure how legal the status of your marriage is.

If the husband brings a second wife even though his first marriage is intact, the law still believes that he is married to the first wife. In such cases, the 2nd wife will have almost no rights to the property and will have little or no protection under the law.

As per section 5 of the Hindu Marriage Act, 1955; the marriage to another person is declared void if he/she is still married to someone else at the time of marriage. Even if the 2nd wife is married to her previous husband, the marriage would still be declared void.

Earlier, the restrictions were only for women who were marrying for the second time even when their husbands were alive. However, as per the new marriage laws, the same rules were imposed on men to enforce the monogamy principle among the Hindus.

Yet another scenario wherein the second marriage is legally alright is when the second marriage is solemnized at least seven years after the first wife left her husband. Also, the husband must have no clue about where the first wife lives or even her living status. The absence of such information and a period of seven years will give legal status to the second marriage.

Ideally, a dead or a divorced first wife is the only way a second wife will have the legal status of her marriage.

The Laws Applicable To 2nd Wife

Several laws are applicable as far as the property rights of a second wife are concerned. Here, you will get a snapshot of some of the key laws and how they play a role in determining the rights over the husband’s property in case of second marriages.

The Hindu Succession Act, 1956/2005

The Succession Law gets applicable whenever a man dies without a will. This law applies to people from the following religion

  • Hindus
  • Buddhists
  • Sikhs
  • Jain

This law gives the successor the rights to the property in case of the untimely demise of the husband, and without a will in place.

The Indian Succession Act, 1925

This law is applicable when the man has left a will and then he dies. This law will apply to Christians and Muslims as well. The will automatically gets activated and the property will be distributed based on the will.

The Muslim Personal Law (Shariat) Application Act, 1937

When a Muslim man dies without a will, it is this law that will come into the picture. It is important to add that the Muslim religion permits a man to have several legal marriages and therefore the property rights for a second wife are different in cases of Muslim marriages. Monogamy isn’t the norm in Muslim marriages.

The Case Scenarios

Now let us see some of the case scenarios with regards to the property rights of the second wife and under which conditions can she gain the right to the property of her husband.

Case I: No legal status

If the second marriage holds no legal status and the first wife of the husband is still living and not divorced, the 2nd wife will have absolutely no right over the property of the husband. It is the first wife alone who would have full rights to the property. However, any children from the second marriage will have the right to the property with the Indian Succession Laws, given the heir is legal.

Also, if the husband has self-acquired property and he leaves a will wherein he mentions his 2nd wife and her share, she will be entitled to receive it. However, the official will wherein the husband mentions the name of the second wife is a must-have document in such cases.

Case II: The death of the first wife

If the second marriage takes place after the death of the first wife, the marriage is legal and valid. In such cases, the second wife and her children from this marriage become Class- I legal heir of the husband and thus they have full right over the property. Any child from the first marriage will also have an equal share in the property as per the Hindu Succession Act.

Case III: The divorce of the first wife

If the marriage took place after the husband divorced his first wife, the second marriage is considered legal and thereby the 2nd wife will have rights to her husband’s property. It is important to know that the first wife, having been divorced, holds no right to the property of her now ex-husband. However, any children from the first marriage can claim their rights to the property as they are the Class-I heirs.

Case IV: Joint Property Holders

If a property is held jointly by the husband and the first wife, the first wife will always have claims on the property. This is regardless of the legal status of the marriage. The 2nd wife will have no claims on the property. However, when the first wife dies, the second wife will end up having a claim on such joint properties.

The Right To Maintenance For A 2nd Wife

Society sometimes adds stigma to the “2nd wife”. This is why the laws are in place to ensure they get the right maintenance as soon as the marriage is declared valid. Section 125 of the CrPC, says that if a man treats a certain individual as his wife, this could be treated as evidence of marriage.

However, if the marriage is considered void and doesn’t have legal status, the wife doesn’t enjoy the right to maintenance or the husband.

The children of the second wife in an illegal marriage can claim maintenance until the age they are minors and they are not able to fend for themselves. They can also choose to claim maintenance from the father after they have attained a majority if they are physically or mentally abnormal and are unable to maintain themselves. If the couple has a daughter who was eventually married, she will have no right to maintenance from the father.

A rare exception where a 2nd wife can claim maintenance from the husband even in a void marriage is when she can prove that she did not know about the first marriage. But different courts have different standing on this matter. Some courts don’t give the second wife any legal ground for maintenance even though she had no clue about the first wife.

The Property Rights Of Children Of 2nd Wife

Once a couple chooses to have children, they too become a part of the property rights. So, when you are exploring the detail of the property claim for 2nd wife, you also need to know the rights that the children of the second wife hold. Without this knowledge, the information is largely incomplete.

The key point is that the children of the husband and the second wife will always have the same right to property as the children from the first marriage. This is regardless of the legal status of the second marriage. This is as per section 16 of the Hindu Marriage Act.

These children, coming from the second marriage are also the Class-I legal heir and therefore they have full right to inherit the property as per the Hindu Succession Act,1956.

If the man has a self-acquired property and he leaves a will stating who all has a claim to the property, his will becomes the final word. If he mentions his children from the second wife, they will be entitled to the property, no matter whether his marriage was legal or not.

The Class I Legal Heir

Whenever a property of a deceased man has to be divided in the absence of a will, it will end up being equally distributed among all the legal class I heir. This is why you have to know what relations qualify as the class I legal heir.

  • Sons from all marriages
  • Daughters from all marriages
  • Widow
  • Mother
  • Widow of the predeceased son
  • Children of predeceased sons
  • Children of predeceased daughters
  • Widow of the predeceased son of the predeceased son
  • Children of a predeceased son of a predeceased son
  • Children of a predeceased daughter of a predeceased daughter
  • Daughter of a predeceased son of a predeceased daughter
  • Daughter of a predeceased daughter of predeceased son

So, all these hierarchical relations fall under the class I legal heir. Whenever an ancestral property is distributed, all the above said relations legally hold a right to the property. In most cases, these many heirs don’t end up claiming the property. But, the law surely has coverage for all the above legal heirs.

The Class-2 Heir

The property will only be divided among the class– II heir when no one from the Class-I heir is present to take their claim of the property.

This is why you need to know who falls under the class-II heir. It will allow you to justify your stake to ancestral property.

Here is a list of people who would fall under the category of legal Class-II heir.

  • Father
  • Great-grandson (son-daughter-son)
  • Great-granddaughter (son-daughter-daughter)
  • Immediate siblings (brothers and sisters)
  • Daughter’s son’s son
  • Daughter’s son’s daughter
  • Daughter’s daughter’s son
  • Daughter’s daughter’s daughter
  • Children of brother
  • Children of sister
  • Grandparents
  • Father’s widow
  • Brother’s widow
  • Immediate sibling of father
  • Grandparents (from mother’s side)
  • Immediate siblings of mother

So, these people fall in the Class II category. Always remember that their property right only exists when there is no class I heir present. Even if there is a single class I heir present, the entire property would go to him/her. Then, the Class II heir will receive nothing.

FAQ

Is the second marriage for a Hindu legal if the first wife is still alive?

No, as per the Hindu laws, the second marriage is considered void if the first wife of the husband is either alive or the divorce hasn’t been finalized during the time of the second marriage.

Does the second wife have the right to property owned by the first wife?

Regardless of the legal status of the second marriage, the second wife has no rights to property owned by the first wife.

What are the legal rights of a 2nd wife?

If the marriage is legally sanctioned, the 2nd wife has full legal rights just like the first wife.

What are the rights to the husband’s property of a second wife?

If the marriage is legally justified, the second wife will have full rights to the husband’s property. In case of an illegal marriage, the law gives little or no property rights to the second wife.

Do children of the 2nd wife have the right or property held by their father?

As per the Hindu Succession Act, the children of the second wife have an equal share in the ancestral property. This is regardless of the legal status of the marriage. They are the class I heir.

So, with this information, feel free to understand the exact property rights of a 2nd wife. Don’t let society tell you otherwise.